NIAGARA PRESERVATION, COALITION, INC. Plaintiff,
FEDERAL ENERGY REGULATORY COMMISSION, et al. Defendants.
EMMET G. SULLIVAN, United States District Judge
Pending before the Court is defendants’ motion to transfer venue to the United States District Court for the Western District of New York (the “Western District of New York”). Upon consideration of the motion, the response and replies thereto, the applicable law, and the entire record, the Court GRANTS defendants’ motion to transfer venue.
Plaintiff is challenging the construction of a dry dock facility for the storage, maintenance, and refueling of tour boats by the Maid of the Mist Steamship Company (“Maid of the Mist” or “MOTM”) on the Niagara River in New York. Def.’s Mot. at 1. The dock is being constructed on the site of the Schoellkopf Power Plant (“Power Plant Site”), which is listed on the National Register of Historic Places. Compl. ¶ 1. The project is located on lands owned by the New York Power Authority (“NYPA”), which are managed by the New York State Office of Parks, Recreation and Historic Preservation (“OPRHP”). Defendant Federal Energy Regulatory Commission (“FERC”) oversees the property pursuant to a license agreement with NYPA. Compl. ¶¶ 58-60.
MOTM currently stores its boats in Ontario, Canada; its lease for the Canadian storage facility is set to expire in 2014. As a result of the expiration and MOTM’s inability renew its Canadian lease, MOTM and the NYPA entered into a Memorandum of Understanding in 2012 for the construction of the dry dock facility at the Power Plant Site. The facility is to become the property of the State of New York upon completion. Def.’s Mot. at 2; Plaintiff’s Opp’n at 4. In December 2012, NYPA initiated a state environmental review process, which found in February 2013 that there would be no environmental impacts from the project that required the preparation of an Environmental Impact Statement (“EIS”). Def.’s Mot. at 2. MOTM submitted a joint application to the Buffalo District of the United States Army Corps of Engineers (“USACE”) in January 2013 for a Letter of Permission pursuant to Section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403, for various permits relating to the project. Compl. ¶¶ 101-102. After consulting with New York state agencies, Native American Tribes, and other local entities, the Buffalo District of USACE issued a finding of “No Adverse Effect” regarding the project and a Letter of Permission in April 2013. Compl. ¶¶ 114-118.
NYPA filed a notice that it intended to approve the project with FERC on February 8, 2013, and asked that FERC authorize it to proceed by February 22, 2013. Compl. ¶¶ 63-64. Plaintiff filed a Motion to Intervene at the agency level on February 20, 2013. Id. ¶ 65. FERC authorized NYPA’s notice request on March 8, 2013, and plaintiff filed a Request for Reconsideration on March 28, which is still pending. Id. ¶¶ 70, 80, 89-96. Plaintiff also filed a related Article 78/declaratory action proceeding in New York state court; its motion for a preliminary injunction was denied by the Appellate Division, Fourth Judicial Department in June 2013. Id. ¶¶ 121-126.
Plaintiff filed suit in this Court on July 3, 2013. Plaintiff seeks an order from the Court declaring that various approvals granted for the project were arbitrary and capricious and compelling defendants to conduct an analysis of the project as required by the National Environmental Policy Act (“NEPA”). On July 15, 2013, plaintiff filed a motion for a temporary restraining order and preliminary injunction. Defendants then filed a motion to transfer this action to the Western District of New York on July 18, 2013, which plaintiff opposes. The motion to transfer is now ripe for determination.
II. Standard of Review
Pursuant to 28 U.S.C. § 1404(a), “[f]or the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district where it might have been brought.” In so doing, the district court has discretion to transfer a case based on an “‘individualized case-by-case consideration of convenience and fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)); see also Demery v. Montgomery County, 602 F.Supp.2d 206, 210-211 (D.D.C. 2009) (“Because it is perhaps impossible to develop any fixed general rules on when cases should be transferred[, ] . . . the proper technique to be employed is a factually analytical, case-by-case determination of convenience and fairness.”) (internal quotation marks omitted)). The moving party bears the burden of establishing that transfer of the action is proper. Devaughn v. Inphonic, Inc., 403 F.Supp.2d 68, 71 (D.D.C. 2005); see also SEC v. Savoy Indus., Inc., 587 F.2d 1149, 1154 (D.C. Cir. 1978) (noting that the district court’s denial of a motion to transfer “was effectively a ruling that [the appellant] had failed to shoulder his burden”).
In order to justify a transfer, defendants must make two showings. First, they must establish that plaintiff could have brought suit in the proposed transferee district. Devaughn, 403 F.Supp.2d at 71-72; Trout Unlimited v. United States Dep’t of Agric., 944 F.Supp. 13, 16 (D.D.C. 1996). Second, defendants must demonstrate that considerations of convenience and the interests of justice weigh in favor of a transfer. Devaughn, 403 F.Supp.2d at 72; Trout Unlimited, 944 F.Supp. at 16.
A. Where the Case Could have Been Brought
The threshold question for the Court under § 1404(a) is whether plaintiff could have brought this action in the Western District of New York, the transferee court proposed by defendants. In an action brought against an officer or employee of the United States or its agencies, venue is proper is any district where (1) a defendant resides; (2) a substantial part of the events or omissions giving rise to the claim occurred; or (3) the plaintiff resides, if no real property is involved in the action. 28 U.S.C. § 1391.
Defendants argue that this case should be transferred to the Western District of New York because the District of Columbia has, at best, an attenuated connection to plaintiff’s claims. Most of the operative events that give rise to plaintiff’s claims occurred in the Western District of New York, plaintiff and its members are based in New York, and the economic impacts of the project will be felt in New York. Def.’s Mot. at 1, 4-5. Significantly, plaintiff does not dispute that this action could have been brought there. In its opposition plaintiff argues only that transfer is inappropriate under § 1404(a), and has thus waived argument on whether this claim could have been brought in the transferee district. See CSX Transp. Inc. v. Commercial Union Ins., Co., 82 F.3d 478, 482-83 (D.C. Cir. 1996); see also Hopkins v. Women’s Div., Bd. of Global Ministries, 238 F.Supp.2d 174, 178 (D.D.C. 2002) (“It is ...